Shelton v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM AND ORDER: Plaintiff's 21 Objection to Magistrate Judge Lee's Report and Recommendation is OVERULED; Magistrate Judge Lee's 20 Report and Recommendation is ACCEPTED AND ADOPTED in its entirety; The Comm issioner's Motion for 17 Summary Judgment is GRANTED and Plaintiff's 12 Motion for Judgment on the Pleadings is DENIED, and The Commissioner's decision is AFFIRMED. Signed by District Judge Harry S Mattice, Jr on 7/15/2011. (BJL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE
LISA SHELTON,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant.

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Case No. 2:10-cv-135
Judge Mattice

MEMORANDUM AND ORDER
Plaintiff Lisa Shelton brought this action for judicial review of the final decision of the
Commissioner of Social Security that she was not disabled under the Social Security Act.
The Court referred this matter to Magistrate Judge Susan K. Lee pursuant to 28 U.S.C. §
636(b) and Federal Rule of Civil Procedure 72(b) for a Report and Recommendation
(“R&R”).
Magistrate Judge Lee entered her R&R [Court Doc. 20] on June 6, 2011,
recommending that the Commissioner’s Motion for Summary Judgment [Court Doc. 17]
be granted, that Plaintiff’s Motion for Judgment on the Pleadings [Court Doc. 12] be
denied, and that the Commissioner’s decision be affirmed. Plaintiff has filed a timely
objection to the R&R [Court Doc. 21].
For the reasons stated below, the Court will OVERRULE Plaintiff’s objection and will
ACCEPT AND ADOPT Magistrate Judge Lee’s Report and Recommendation.
I.

STANDARD OF REVIEW
The Court must conduct a de novo review of those portions of the R&R to which an

objection is made and may accept, reject, or modify, in whole or in part, the Magistrate

Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1)(C). For those portions of the
R&R to which objections have been made, the Court will directly review the circumstances
leading to the determination that Plaintiff was not disabled. Id.
The Court must determine whether substantial evidence supports the
Commissioner’s denial of benefits. Substantial evidence is defined as “more than a mere
scintilla” of evidence and “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
II.

FACTS
Magistrate Judge Lee’s R&R fully sets forth the relevant facts in this case. There

have been no objections to the relevant facts as set forth in the R&R. Accordingly, the
Court ACCEPTS AND ADOPTS BY REFERENCE the “Factual Background and ALJ’s
Findings” section of the R&R. (Court Doc. 20, R&R at 3-9.)
III.

ANALYSIS
As a preliminary matter, the Court finds that many of Plaintiff’s objections raise no

new arguments but are simply a reargument of issues with the ALJ’s decision previously
raised on summary judgment which were fully addressed in the Report and
Recommendation. The Court finds that further analysis of these same arguments would
be merely cumulative and is unwarranted in light of Magistrate Judge Lee’s well-reasoned
and well-supported Report and Recommendation. The Court will briefly address the novel
objections to the R&R asserted by Plaintiff.
In her first novel objection to the R&R, Plaintiff argues that the ALJ failed to mention
her diagnosis of pseudoarthrosis and that this objective medical evidence of an impairment

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would have made her complaints of pain credible. (Court Doc. 21, Pl.’s Objs. at 8-9.)
Plaintiff takes a quote from Magistrate Judge Lee’s R&R out of context to make it appear
as if her analysis “places the cart before the horse” by affirming the ALJ’s error in
addressing the credibility of Plaintiff’s complaints of pain without acknowledging the
objective medical condition underlying the symptoms. (Id. at 8.)
Magistrate Judge Lee initially noted in the R&R that although Dr. Bolt made the
diagnosis of pseudoarthrosis, “when Dr. Bolt did note increased pain, he attributed it to an
aggravation, not to failed fusion surgery or a pseudoarthrosis.” (R&R at 12.) Magistrate
Judge Lee next noted that the mere diagnosis of a condition was not indicative of its
severity and that the ALJ still had to assess the credibility of any reported symptoms
associated with that impairment, and the ALJ had other sufficient reasons for doubting
Plaintiff’s subjective complaints of pain. (Id. at 12-13.) Magistrate Judge Lee found that
the ALJ properly reached the conclusion that Plaintiff’s complaints of pain were not fully
credible because they were not fully supported by the objective evidence and were
contradicted at points in the medical record, including her testimony at the hearing, her
activities of daily life, her course of treatment, the state agency opinions, and her use of
medication. (Id. at 13-14.) Finally, Magistrate Judge Lee noted that three other studies
of Plaintiff’s lumbar spine, reviewed by three different physicians, indicated no evidence
of pseudoarthrosis. (Id. at 14.) Magistrate Judge Lee therefore concluded that even if the
ALJ erred in failing to mention Dr. Bolt’s diagnosis, he still adequately addressed Plaintiff’s
complaints of pain from all impairments and found that these complaints were not credible.
(Id. at 14-15.) As such, Magistrate Judge Lee found that the ALJ’s decision was supported
by substantial evidence regardless of the ALJ’s failure to mention this diagnosis.
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The Court agrees with Magistrate Judge Lee’s determination and concludes that the
presence or absence of a diagnosis of pseudoarthrosis in the ALJ’s report would have
been inconsequential regarding the outcome and the denial of benefits. Moreover, the
Court agrees with Magistrate Judge Lee’s finding that the ALJ’s decision was supported
by substantial evidence, despite the exclusion of Dr. Bolt’s diagnosis of pseudoarthrosis.
Plaintiff next objects to Magistrate Judge Lee’s determination that the ALJ’s decision
was supported by substantial evidence because Plaintiff argues that the ALJ failed to give
proper weight to the opinion of Plaintiff’s treating physician, Dr. Conway, and that he
erroneously gave controlling weight to the opinion of Dr. Davis, who performed Plaintiff’s
surgery. (Pl.’s Objs. at 9-11.) Plaintiff argues that Dr. Davis did not see Plaintiff for her
back problems after releasing her to her primary care physician, Dr. Conway, and as such,
his opinion cannot reflect significant objective and subjective evidence dating after that
time. (Id. at 10.) Plaintiff asserts that the ALJ’s decision to afford greater weight to Dr.
Davis’ opinion was inappropriate because Dr. Conway was the only physician to examine
Plaintiff during the relevant period. (Id.)
In her R&R, Magistrate Judge Lee noted that the ALJ found Dr. Conway’s opinions
to be conclusory and unsupported by objective evidence. (R&R at 15.) Magistrate Judge
Lee observed, as did the ALJ, that Dr. Conway may have been responding to Plaintiff’s
frequent complaints of pain which the ALJ found were not fully credible. (Id. at 16.)
Magistrate Judge Lee further noted that Dr. Walwyn, who reviewed the record for the state
agency in July 2007, considered Dr. Conway’s statement that the claimant could not sit for
more than thirty minutes at one time and rejected that statement as not substantiated by
the totality of the medical record. (Id.) Magistrate Judge Lee finally observed that Plaintiff
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provided no examples of Dr. Conway referring to objective findings or even to standards
from other physicians of record to support his conclusions. (Id. at 16.) Therefore,
Magistrate Judge Lee concluded that the ALJ had a reasonable basis for affording little
weight to Dr. Conway’s opinions and offered sufficient reasons to support this decision, as
the opinions lacked support from the medical evidence and were at odds with the opinion
of a consulting physician. (Id.) The Court has reviewed the record in this case and agrees
with Magistrate Judge Lee’s findings and conclusion that proper weight was accorded to
the opinions of Dr. Conway and Dr. Davis.
Finally, Plaintiff objects to Magistrate Judge Lee’s determination that the ALJ
conducted a sufficient “function-by-function” analysis pursuant to SSR 96-8p. (Pl.’s Objs.
at 11-14.) Plaintiff’s main argument is that the ALJ did not make a specific finding as to
how long Plaintiff can sit at any one length of time anywhere in his decision, and such a
determination was necessary before determining whether Plaintiff can perform past
relevant work.

(Id. at 11-13.)

Magistrate Judge Lee found that because the ALJ

determined that Plaintiff could perform a full range of sedentary work, he also found, by
definition, that Plaintiff was able to sit for extended periods of time. (R&R at 18.) Further,
as noted above, Magistrate Judge Lee explained that Plaintiff’s testimony was not credible
to the ALJ and Dr. Conway’s opinion was not supported by objective medical evidence,
such that their opinions as to how long Plaintiff could sit were appropriately accorded little
weight. (Id.) Finally, any testimony or opinion that Plaintiff was unable to sit long enough
to perform her previous work was at odds with treatment notes and opinions of other
medical professionals, specifically Dr. Davis and Dr. Bolt, which further cast doubt on the
credibility of Plaintiff and the amount of weight afforded to Dr. Conway’s opinion. (Id.)
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Accordingly, Magistrate Judge Lee found that the ALJ’s narrative discussion was sufficient
to meet the requirements set forth in SSR 96-8p and adequately explained the basis for
his determination that Plaintiff was able to perform past, relevant work.
Accordingly, the Court agrees with Magistrate Judge Lee’s conclusion that the ALJ’s
failure to mention a diagnosis of pseudoarthrosis was harmless and did not impact the
determination of Plaintiff’s denial of benefits, that the ALJ properly gave little weight to the
opinion of Dr. Conway, and that the ALJ sufficiently assessed Plaintiff’s ability to perform
past relevant work. The Court thus concludes that the Commissioner’s decision was
supported by substantial evidence. Plaintiff’s objections to Magistrate Judge Lee’s R&R
are OVERRULED and Magistrate Judge Lee’s recommendation that the Commissioner’s
decision be affirmed is ACCEPTED and ADOPTED. The Commissioner’s Motion for
Summary Judgment is GRANTED and Plaintiff’s Motion for Summary Judgment is
DENIED.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS the following:
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Plaintiff’s Objection [Court Doc. 21] to Magistrate Judge Lee’s Report and
Recommendation is OVERRULED;

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Magistrate Judge Lee’s Report and Recommendation [Court Doc. 20] is
ACCEPTED AND ADOPTED in its entirety;

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The Commissioner’s Motion for Summary Judgment [Court Doc. 17] is
GRANTED;

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Plaintiff’s Motion for Judgment on the Pleadings [Court Doc. 12] is DENIED;

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and
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The Commissioner’s decision is AFFIRMED.
SO ORDERED this 15th day of July, 2011.

/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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